Can a Woman Sue her Husband for Rape in Nigeria?- How the Law can Still Work for Victims.
By Maureen Chikodi Agbodike Esq (SimplilegalwithMaureen)
INTRODUCTION
A 2018 report on Statista showed that a significant portion of reported sexual abuse cases were committed by husbands or partners however, due to stigma, cultural beliefs and legal gaps, many cases go unreported and swept under the carpet where reported. Although advocacy groups continue to push for stronger laws to protect women from this menace, yet many women still suffer in silence.
In Nigeria, spousal rape remains a deeply controversial issue unlike in many other countries where spousal consent is not presumed, Nigerian law does not explicitly criminalize non-consensual sex within marriage. While the absence of a direct spousal rape law remains a challenge, there are existing laws which could be explored to provide victims with potential avenues for legal action. I therefore believe that this legal gap does not mean a woman has no legal recourse if she is sexually violated by her husband.
THE LEGAL GAP AND ITS CONSEQUENCES
The absence of clear laws against spousal rape creates a dangerous loophole often leading to increased cases of domestic violence this is because when a husband believes he has absolute authority over his wife’s body; it can escalate into physical abuse, sexual coercion and even life-threatening assaults. Many women feel powerless because they assume the law does not protect them. However, this assumption is not entirely true because while spousal rape itself is not explicitly outlawed, there are legal provisions that can be used to seek justice.
In Nigeria, marital rape is not explicitly criminalized under both the Criminal Code applicable in the southern states and the Penal Code applicable in the northern states due to provisions that either exempt husbands from prosecution or fail to recognize non-consensual intercourse within marriage as a crime. Here is an evaluation of these Laws:
Section 357 of the Criminal Code Act defined rape as:
“Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or if consent is obtained by force, threats, intimidation, false and fraudulent representation as to the nature of the act, or by administering drugs, is guilty of an offense which is called rape.”
The key terms “unlawful carnal knowledge” in the said section means that a husband cannot be charged with rape because under Nigerian law, sex within marriage is deemed lawful.
Section 6 of the Criminal Code further define unlawful carnal knowledge as one which happens except between a husband and a wife thereby reinforcing the idea that rape laws do not apply to married couples.
Moving to the Penal Code; Section 282(1) categorically provides that: “A man is said to commit rape who… has sexual intercourse with a woman in any of the following circumstances – (a) against her will; (b) without her consent; (c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt; (d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; (e) with or without her consent, when she is under fourteen years of age or of unsound mind.”
These provisions explicitly exempt husbands from being prosecuted for raping their wives.
THE PROBLEM: A LOOPHOLE THAT FUELS DOMESTIC ABUSE
The argument that marital rape is not a crime creates a dangerous loophole that emboldens perpetrators and silences victims. If a woman cannot seek justice for sexual violence in marriage it sets a precedent for other forms of abuse to thrive including but not limited to:
- Legal ambiguity encourages domestic violence; if forced sex is legally excused, physical violence may also be normalized within marriage.
- Expose women to intimidation: Many women remain in abusive marriages, believing they have no legal backing.
- Deny victims justice: Without a clear law against spousal rape, perpetrators act with impunity.
THE SOLUTION: HOW THE LAW CAN STILL WORK FOR VICTIMS
The legal definitions of rape in both codes limit the offense to male perpetrators, exclude non-consensual acts beyond penile-vaginal penetration, and largely exempt marital rape. While Nigerian law does not explicitly criminalize marital rape, certain legal provisions may still provide a pathway for women to seek justice. Ultimately, if justice is served, does it matter which legal provision a victim relies on or the specific charge brought against the perpetrator?
- Unnatural Carnal Knowledge under Section 214 of the Criminal Code: with growing sexual trends in society, the law criminalizes certain sexual acts, whether committed within or outside marriage hence, a woman can still sue her husband if she is subjected without her consent to acts against the “order of nature”, such as anal penetration, bestiality or some interpretations of oral sex, the husband can be prosecuted under Section 214 of the Criminal Code. Section 214: “Any person who has carnal knowledge of any person against the order of nature is guilty of a felony and is liable to imprisonment for fourteen years.”
Notably, the law does not make exceptions for marriage. A husband cannot claim immunity under this provision.
- Assault and Battery under Sections 252 & 264 of the Criminal and Penal Code: so assuming a woman resists forced sex and suffers physical harm, she can file a case under Section 252 of the Criminal Code or Section 264 of the Penal Code, which criminalizes: “Any act which intentionally inflicts harm, pain, bruises, or injuries on another person.”
I do not believe that the law intends for a wife to be subjected to assault and battery under the guise of marital rights. Therefore, I am of the view that the above legal provision applies to marriage as well. If a woman provides evidence of physical assault such as bruises, swelling or bleeding caused by her husband, he can face criminal charges for assault and battery.
- Divorce & Child Custody Laws: If a woman cannot secure criminal prosecution, she may explore civil remedies such as: Filing for divorce on grounds of cruelty (evidence of non-consensual sex and violence can support the case), Seeking a restraining order under the VAPP Act (if applicable) and applying for child custody by proving the husband is abusive and unfit.
CONCLUSION:
While Nigeria lacks explicit laws criminalizing marital rape, this does not mean that women are without legal recourse. Existing provisions on unnatural carnal knowledge, assault and battery offer a means to seek justice, not to forget the VAPP Act which provides additional protection. However, legal gaps continue to leave many women vulnerable thereby reinforcing the urgent need for legislative reforms. Until these changes occur, it is vital to raise awareness that marriage is not a license for abuse. A spouse cannot hide behind marriage to justify unnatural acts or physical abuse because under Nigerian law, that is a crime.
References:
- Statista Research Department. (November 16, 2022). “Distribution of reported cases of sexual abuse in Nigeria 2018, by perpetrator.” Retrieved from https://www.statista.com/statistics/1261232/reported-cases-of-sexual-abuse-in-nigeria-by-perpetrator/
- Criminal Code Act (Nigeria). “Section 357 – Definition of Rape.” Retrieved from https://lawsofnigeria.placng.org/laws/C38.pdf
- Criminal Code Act (Nigeria). “Section 6 – Definition of Unlawful Intercourse.” Retrieved from https://lawsofnigeria.placng.org/laws/C38.pdf
- Penal Code Act (Nigeria). “Section 282(1) – Rape.” Retrieved from https://lawsofnigeria.placng.org/laws/P3.pdf
- Violence Against Persons (Prohibition) Act (2015). “Section 1 – Offense of Rape.” Retrieved from https://www.refworld.org/pdfid/556d5eb14.pdf Criminal Code Act (Nigeria).
- “Section 214 – Unnatural Offenses.” Retrieved from https://lawsofnigeria.placng.org/laws/C38.pdf
- Penal Code Act (Nigeria). “Section 275 – Assault.” Retrieved from https://lawsofnigeria.placng.org/laws/P3.pdf
- Criminal Code Act (Nigeria). “Section 252 – Definition of Assault.” Retrieved from https://lawsofnigeria.placng.org/laws/C38.pdf
- Penal Code Act (Nigeria). “Section 264 – Voluntarily Causing Hurt.” Retrieved from https://lawsofnigeria.placng.org/laws/P3.pdf
****************************************************************************************
This work is published under the free legal awareness project of Sabi Law Foundation (www.SabiLaw.org) funded by the law firm of Bezaleel Chambers International (www.BezaleelChambers.com). The writer was not paid or charged any publishing fee. You too can support the legal awareness projects and programs of Sabi Law Foundation by donating to us. Donate here and get our unique appreciation certificate or memento.
DISCLAIMER:
This publication is not a piece of legal advice. The opinion expressed in this publication is that of the author(s) and not necessarily the opinion of our organisation, staff and partners.
PROJECTS:
🛒 Take short courses, get samples/precedents and learn your rights at www.SabiLaw.org
🎯 Publish your legal articles for FREE by sending to: eve@sabilaw.org
🎁 Receive our free Daily Law Tips & other publications via our website and social media accounts or join our free whatsapp group: Daily Law Tips Group 6
KEEP IN TOUCH:
Get updates on all the free legal awareness projects of Sabi Law (#SabiLaw) and its partners, via:
YouTube: SabiLaw
Twitter: @Sabi_Law
Facebook page: SabiLaw
Instagram: @SabiLaw.org_
WhatsApp Group: Free Daily Law Tips Group 6
Telegram Group: Free Daily Law Tips Group
Facebook group: SabiLaw
Email: lisa@sabilaw.org
Website: www.SabiLaw.org
ABOUT US & OUR PARTNERS:
This publication is the initiative of the Sabi Law Foundation (www.SabiLaw.org) funded by the law firm of Bezaleel Chambers International (www.BezaleelChambers.com). Sabi Law Foundation is a Not-For-Profit and Non-Governmental Legal Awareness Organization based in Nigeria. It is the first of its kind and has been promoting free legal awareness since 2010.
DONATION & SPONSORSHIP:
As a registered not-for-profit and non-governmental organisation, Sabi Law Foundation relies on donations and sponsorships to promote free legal awareness across Nigeria and the world. With a vast followership across the globe, your donations will assist us to increase legal awareness, improve access to justice, reduce common legal disputes and crimes in Nigeria. Make your donations to us here or contact us for sponsorship and partnership, via: lisa@SabiLaw.org or +234 903 913 1200.
**********************************************************************************
